As arbitration strives to become more efficient by avoiding burdening itself with the complexities of litigation, its practitioners have striven to slim down the length of oral hearings. A notable movement in this respect has been the substitution of written documents—usually referred to as “witness statements”—in place of the eliciting of witnesses’s testimony orally. Witness statements have the advantage of occupying no hearing time (other than perhaps a brief oral questioning of the witness to “warm to the seat,” in American parlance). Another advantage is that the testimony of witnesses is known in advance of the hearing.
The result is that the traditional hearing in which testimony is taken is turned upside down: the great bulk of the time is taken by adversarial questioning of the witnesses as to their statements. In a very real sense, hearings in international arbitration have become about the cross-questioning of witnesses—an atmosphere of confrontational examination of witnesses.
This development in the hearing of commercial and investment disputes presents opportunities and challenges—opportunities to those seeking to undermine testimony and to the arbitrators who wish to put their own questions to witnesses, and challenges both to those whose task it is to question such witnesses and to those who must be questioned or prepare witnesses to be questioned.